Bayer Reeling After Plaintiffs’ Roundup Lawsuit Victories

Philadelphia, PAAfter Bayer lost the last four Roundup trials--breaking its nine-trial winning streak, the outcome of the trial underway in Philadelphia is crucial to its investors, and to about 50,000 Roundup lawsuits it currently faces. Bayer likely rues the day in 2018 when it bought Monsanto for $63 billion.

Financial Woes

The $2 billion in verdicts over the last few weeks alone has resulted in Bayer’s biggest drop in shares ever. Fortune reports the company lost about $8.3 billion in market value, “after major legal and drug-development setbacks that raise pressure on its new leader to outline a turnaround plan,” and The Wall Street Journal reports that Bayer’s losses halted its study for a blood-thinning drug. Bayer agreed in 2020 to pay up to $9.6 billion to settle then-existing Roundup lawsuits, but future claims were not resolved.

Philadelphia Roundup Lawsuit

In the current trial--Martel v. Nouryon Chemicals, plaintiff Kelly Martel claims her non-Hodgkin lymphoma was caused from using Roundup. According to Reuters, Martel’s case will help test whether plaintiffs' recent victories were an aberration, or the payoff from favorable court rulings and a shift in plaintiffs' strategy. Several factors could determine the difference in outcome, including judges' rulings allowing jurors to hear testimony about regulatory issues related to Roundup, which Bayer has called misleading, and a new emphasis by plaintiff’s lawyers on chemicals in the product other than its active ingredient, glyphosate.

Cocktail of Carcinogens

As for the new emphasis, this trial is the first to focus on chemicals other than glyphosate Roundup’s active ingredient. Martel’s lawsuit argues that Pennsylvania-based Nouryon Chemicals produced a substance that makes Monsanto’s weedkiller even more dangerous. Bart Rankin, a lawyer for plaintiffs in the recent $1.56 billion verdict, emphasized Roundup’s "cocktail" of harmful chemicals in Roundup and played down glyphosate. In the last few trials, more emphasis has been placed on other known toxins and their cancer-causing potential, including formaldehyde (which is on Nouryon’s product list), arsenic and other known carcinogens.

In this trial, Bayer has the EU Commission on its side. Last month, the EU Commission said it would renew its approval of glyphosate based on safety assessments of the European Food Agency and European Chemicals Agency after EU member states were on the fence about a renewal. It approved glyphosate despite the World Health Organization’s International Agency for Research on Cancer (IARC) classifying Roundup as a “probable cancer-causing agent”. WHO’s conclusion is also on the fence within the scientific community: the U.S. Environmental Protection Agency says glyphosate "is not likely to be carcinogenic to humans" — but that nevertheless got glyphosate added to the Proposition 65 list in 2017.

Bayer still insists its Roundup is safe. Regarding the trial that resulted in the $1.56 billion verdict, Bayer said the following:

“In contrast to prior trials, recent trial courts improperly permitted plaintiffs to misrepresent the worldwide regulatory and scientific support for our products by falsely characterizing the EU’s reapproval process and EPA’s assessment of glyphosate as safety concerns. In fact, the EU Commission just last week re-approved glyphosate for another 10 years following positive scientific assessments, and the EPA continues to reaffirm that glyphosate is not carcinogenic. Additionally, the Ninth Circuit just this month concluded ‘IARC stands essentially alone in its determination that glyphosate is probably carcinogenic to humans, while EPA, OEHHA, and regulators from around the world conclude that it is not…“We have strong arguments to get the recent unfounded verdicts overturned. We won 9 of the last thirteen trials and the majority of claims in this litigation are resolved. The Company remains fully committed to defending the robust scientific and regulatory evidence in future trials and appeals.”

But Rankin, the lawyer for plaintiffs in that verdict was more convincing. "Ladies and gentlemen, they are carcinogens, and when you stack them one on top of the other, it makes an impact," he told the jury in his closing argument, calling Roundup a “cocktail” of harmful chemicals.